D K VAIDAYA Vs. MURLIDHAR KHIMANDAS RIJHWANI

JUDGEMENT

(1.) HEARD the learned Advocate for parties. A short question which crops for consideration in this Revision is, whether the Respondent in this Revision can claim immunity under Section 91 of the Maharashtra Co-operative Societies Act. The learned Advocate for the petitioner has vehemently contended that the Executing Court has seriously erred in going behind the award of the Co-operative Court when the circumstances on record patently warranted an inference that the Respondent was a licensee and by no stretch of imagination, a tenant under the Hyderabad rent Control Act. I do find a lot of substance in this submission and the learned Advocate for the Petitioner has made a plausible attempt to take me through the award of the Co-operative Court. On going through the award, I am very much satisfied that the Respondent cannot blow hot and cold, and at one point of time, claim himself to be a Member, and when the adverse situation arose, claims to be the tenant.

(2.) IT seems that the Respondent in case No. ACR/1533/76 before the co-operative Court, raised the contention that he was a tenant when the society and Disputant No. 2 the allottee of the flat, came before that court for seeking eviction of the Respondent. It seems that the Respondent according to the Society was neither a Member of the Society nor any block was allotted to him in that Society. The Respondent, it seems gave a notice through his Advocate on the flat, that the is he Member of the Disputant society, that the said block No. 12-B was allotted to him, and that he is the owner of the said flat. Indeed, the Society replied in the negative The respondent sent a cheque of Rs. 610. 00 by way of instalment towards payment of loan amount. He claimed to be the Member of the Society and claimed ownership of flat No. 12-B, which in fact was allotted to the Allottee-Petitioner No. 1. However, in the Dispute, the Respondent filed written statement that he was a tenant. Now looking to these facts, it would be manifestly clear that the Respondent once claimed himself to be the owner and an allottee of the flat, and this is well evinced through the notice which he gave to the Society claiming himself to be the owner. At a later stage, he claims to be a tenant and relying on this averment, the learned advocate for the Respondent has contended that it is the settled position of law that when there is a dispute between landlord and tenant, the matter must go to the Rent Controller, and cannot be entertained by the Co-operative court. This is indeed the legal position, but in a given situation, such a stand by the Respondent cannot be allowed at all. The learned Advocate for the Respondent has pointed out that there are about three receipts wherein the respondent has been accepted as a tenant. However, it seems that except one receipt, in other receipts, the claim of the Respondent is not supported. The most important point which needs attention is that the Respondent gave up himself as a tenant and entered into the terms of compromise, which form the part of the order of the Co-operative Court, In that compromise, he has clearly admitted that he was not the tenant, and that he was to handover the possession of the flat by December 1978, and that he was to pay Rs. 160/-per month by way of arrears of damages and compensation. These terms of compromise clinch the relationship between the Petitioner No. 1 and respondent and that relationship is that of a licensor and licensee. The co-operative Court was fully within its jurisdiction to decide this issue. Against the terms of compromise, the Respondent cannot claim to be the tenant and for all these reasons, the conclusion that inevitably follows is that the relationship between the Petitioner No. 1 and Respondent is by no stretch of imagination that of a landlord and tenant.

(3.) IT is regretted that the Executing Court in face of these judgments went beyond the scope of enquiry permitted by the Executing Court and it landed on patently incorrect conclusion that it cannot execute the decree. The learned Appellate Judge also held that the relationship was that of a licensee and licensor, but it cannot entertain the Appeal, as no Appeal was available. I, therefore, feel that the order of the Executing Court shall have to be set aside. The Executing Court shall execute the decree in terms of the award passed by the Co-operative Court, Aurangabad. Accordingly, Rule is made absolute. Civil Revision is allowed with costs. Revision allowed.